Patient Flow Enewsletter
Volume 1, Issue 7
Thursday, September 2, 2004

Site Interview
 Implementing EMTALA Regulations and Its Impact on ED Crowding

Resources in this article: EMTALA Frequently Asked Questions 2003 EMTALA Regulations

In every city, ideas about the local safety net are inevitably tied to reactions to the Emergency Medical Treatment and Labor Act - known simply to all as EMTALA. While views on EMTALA range from perceiving it as a much-needed protection for those without health coverage, to the death knell for efficiency in hospital emergency departments, EMTALA has by all accounts transformed the landscape of emergency medicine in the nearly 20 years since its inception.

Passed by Congress in 1986, EMTALA provides protections for patients who come into America's hospital emergency rooms, regardless of their ability to pay. In short, EMTALA prevents hospitals from rejecting patients, refusing to treat them, or transferring them to another facility just because they may be unable to pay or are covered by Medicare or Medicaid.

The Internet has thousands of pages of analysis on EMTALA's provisions, but one succinct overview (www.emtala.com/faq.htm) of the key provisions states, "Any patient who comes to the emergency department requesting examination or treatment for a medical condition must be provided with an appropriate medical screening examination to determine if he is suffering from an emergency medical condition. If he is, then the hospital is obligated to either provide him with treatment until he is stable or to transfer him to another hospital in conformance with the statute's directives."

But determining exactly what these provisions encompass has stymied patient advocates and hospitals for years. To provide guidance, the U.S. Department of Health and Human Services last year issued final EMTALA rules further clarifying the regulations.

Thomas R. Barker, acting deputy general counsel for HHS, was instrumental in shaping the rules for the Centers for Medicaid and Medicare Services. A Massachusetts native, Barker is a former regulatory counsel of the Massachusetts Hospital Association. He has worked for HHS for nearly three years and frequently speaks with physicians and hospital leaders about EMTALA.

Interview: Thomas R. Barker

Q. What is the chief success of EMTALA over the past 20 years?

EMTALA was enacted because Congress was concerned that hospitals were refusing to provide care for the uninsured and felt that, at the very least, hospitals should provide emergency medical treatment when it was needed. There is no doubt that EMTALA has been very successful at meeting that specific goal. Now everyone in America who arrives in an emergency room is entitled to a minimal examination and emergency treatment if needed. Since EMTALA became law, interested parties have argued that some clarifications to EMTALA have been needed, and those concerns have been reflected in the first set of regulations published in 1994, in interpretive guidelines published in 1998, and in the new regulations released last year. From my perspective, EMTALA has greatly helped uninsured and under-insured people and it certainly has changed hospital behavior. I think almost across the board, hospitals and their clinicians are more accepting of EMTALA than they once were and are seeing people regardless of their insurance status. That was certainly not always the case in the early 1980s.

Q. How did CMS determine that the 2003 regulations were needed?

Over the nearly 20-year history of EMTALA, there have been many urban myths about what EMTALA requires. There are all kinds of these urban myths. In addition, some people say that EMTALA caused overcrowding in the emergency room. We felt that if EMTALA was in any way exacerbating overcrowding, then the new regulations should address that, among other issues that have been brought to our attention over the years. I'm not convinced that EMTALA does lead to emergency department overcrowding, but if it is, then the new regulations will address it in many ways, such as CMS' clarification that patients with a minor medical complaint that is clearly not an emergency can be given a lesser medical screening examination than a patient with a more serious medical complaint.

Q. What are the significant changes to EMTALA in last fall's regulations?

The 2003 EMTALA regulations clarified a number of things for hospitals.

They specifically addressed where in a hospital the regulations apply. They addressed what a hospital's obligation to treat a patient is and when those obligations end. They clarified a hospital's requirements for having physicians on-call for emergency services. Those are the major areas, although the regulations explained other points as well, including questions about the applicability of EMTALA in ambulances, and when the patient registration process can begin in the hospital and what it can include.

Q. In your opinion, has EMTALA contributed to overcrowding in hospital emergency rooms?

I certainly hear that EMTALA is to blame for the overcrowding, but I'm not sure that it's absolutely true. If it is, then hopefully some of the changes we made to the regulations will help. By and large, overcrowding is not caused by people coming in to the emergency department so much as it's caused by delays in getting them out of the emergency department and sending them somewhere more appropriate.

To blame EMTALA for the overcrowding' problem overlooks problems on the back end. Intellectually, it stands to reason that if you have a bottleneck in the ER, there are only two possible reasons: you have too many people coming in the front door or not enough people going out the back door. Maybe both. That's one of the aspects of the Urgent Matters project that is so compelling - that it looks at causes and solutions to the crowding problem throughout the continuum of a patient cycle in the ER.

Q. Given the fact that many ERs are currently stretched in so many ways, do you think EMTALA needs to be changed or relaxed?

I don't think it needs to be relaxed, but there are a few areas for Congress and the agency to consider. We owe providers and patients information on how EMTALA applies in the event of a psychiatric evaluation, for example. That poses a lot of questions that the agency has not answered in a systemic way. I think CMS could probably answer some of these questions through regulations or interpretive documents. We also certainly hear that the crisis in maintaining doctors on-call for emergencies is worse now than it was 10 years ago. If EMTALA exacerbates that problem, then Congress or the agency should try to address it. The recently announced EMTALA Technical Advisory Group may provide some recommendations for changes to the on-call requirements.

Q. CMS has created an EMTALA Advisory Group to further review regulations. What is the specific task of this group?

The group was called for earlier this year in the Medicare modernization legislation that passed Congress and was signed by President Bush last December. Congress wanted a group of practitioners and others to offer practical advice on EMTALA. The committee will have 19 members, including practicing physicians, and will start meeting in late fall. CMS published a Federal Register notice that explains how people can be considered for the group. Once it is formed, they'll identify topics that they're going to tackle. I'm guessing that on-call procedures will be high on the list.

Q. As you know, several nonprofit hospitals in many states are the target of a series of lawsuits that claim they failed to provide charity care to the uninsured. What is your reaction to these suits and what is CMS' role in these suits?

My personal view is that the legal theories in the suits are questionable at best. CMS is not a part of the suit, so we don't plan on getting involved in this at all. To the extent, however, that anyone believes that patients were not allowed to receive charity care or discounted rates from the hospitals because the Medicare program does not allow it - that is completely false. The Medicare program neither precludes hospitals from giving discounted rates, nor does it require it.

Q. There are reports that in some cities, hospital staff perform triage at the ER door and often refer patients immediately to primary care centers in order to reduce ER crowding. Can you comment on what seems to be a gray area as far as EMTALA is concerned?

I would say that they are walking a very fine line of what is and is not permitted under EMTALA. It would not take very much for a hospital to cross the line and ask one wrong question of a patient, such as asking anything that questioned a patient's ability to pay, for example. Under EMTALA, everyone is entitled to a screening exam that is separate from triage by the nurse. If the triage nurse is making the assessment about the condition, and based on that assessment, the patient is sent away based only on that triage, then that could be a problem under EMTALA.

Q. What is your reaction to criticism that the sanctions for not adhering to EMTALA are too high?

I don't have much of a reaction to that except to explain the facts. If the Office of the Inspector General concludes that a hospital violates EMTALA, then it can be charged $25,000 to $50,000, or have its provider agreement terminated. Plus, patients have civil recourse as well. Likewise, the OIG can also mitigate the fine. Sanctions are much more frequent now than they were 10 years ago because, frankly, the OIG does a better job focusing on them. They do seem to serve as an effective deterrent.

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Thomas R. Barker, Esq.
Acting Deputy General Counsel
U.S. Department of Health and Human Services
Washington, DC